Advocates say jail is dangerous for people with mental illness, but the state psychiatric hospital cites red tape and a limited number of beds
Despite court orders, 16 people found guilty except for insanity in Oregon are being held in jail rather than transferred to the Oregon State Hospital to receive treatment, as of July 16.
The pattern was highlighted during a July 14 hearing, in which the Oregon State Hospital and Oregon Health Authority, the agency that oversees the hospital, defended themselves against contempt allegations for failing to abide by court orders sending the men to the state hospital for treatment.
Multnomah County Circuit Court Judge Nan G. Waller issued the order for one man on March 10, ordered he be transported “without unreasonable delay.” The other man was ordered to the state hospital “immediately” on May 5, 2021. Another person who was not in court July 14 has been in jail awaiting transfer since Jan. 15, testimony revealed.
Ordered to the hospital, stuck in jail
In Oregon, when a person is found guilty of a crime except for insanity, they are placed under the jurisdiction of the Psychiatric Security Review Board, typically for the maximum sentence length provided by statute for the crime(s).
While under the board’s jurisdiction, they can be housed in the Oregon State Hospital — as is supposed to be the case for the 16 people currently awaiting admission — or in a variety of residential treatment settings.
Between April 1, 2020, when the hospital altered admissions practices to limit the spread of COVID-19 and July 16, 79 people were found guilty except for insanity in Oregon, Alison Bort, Psychiatric Security Review Board executive director, told Street Roots in a July 16 statement.
Of the 79 people, 64 people were ordered to the state hospital — 16 of whom are still awaiting admission.
These admissions, however, are only part of the larger picture. The state hospital also houses people committed through two other types of committals, aid and assist and civil committals.
Including people admitted by virtue of revocation, meaning the board found they would be better treated at the state hospital, guilty-except-for-insanity committals account for 74 of the 1,040 state hospital admissions between April 1, 2020 and July 8, Rebeka Gipson-King, Oregon State Hospital spokesperson, told Street Roots.
Civilly committed people — people found by the court to be a danger to themselves or others, or unable to provide for their own basic needs because of a mental disorder — account for 33 admissions. There were 23 people under civil committals waiting on admission to the state hospital on July 16, Gipson-King said.
STREET ROOTS NEWS: How hard is it to have someone committed? (from 2018)
Aid and assist is the most common type of committal, comprising 933, or almost 90%, of people admitted to the hospital during that time frame. Aid and assist committals are court-ordered so defendants can receive mental health treatment to help them understand the criminal charges against them and to assist in their own defense.
And while there are currently 28 people under aid and assist orders in jail awaiting transfer to the state hospital, this list is different from the other two: It has priority.
Cases, causes and consequences
The two cases argued before the court last week are the most recent in a long history of litigation against the state hospital for delays in admitting court-ordered people for treatment.
There are three ongoing cases regarding people found guilty except for insanity who remain in jail despite being ordered to treatment, Gipson-King said. Additionally, there are a number of cases regarding people committed through aid and assist who were in jail for a considerable period of time while awaiting treatment at the state hospital.
In June 2019, the Washington County Circuit Court found the Oregon State Hospital “willfully violated” an order to admit people committed through aid and assist within seven days. The week timeline at the heart of the case came from a landmark 2002 lawsuit by Disability Rights Oregon.
The rulings led to a number of changes in how aid and assist committals are handled by the state hospital, most notably including prioritizing aid and assist admissions over both guilty-except-for-insanity and civil admissions.
This prioritization of aid and assist cases has become the crux of both party’s arguments. Representing the hospital and Oregon Health Authority in court, Kate Beck, assistant attorney general of Oregon, argued the men's lawyers could not prove the hospital “willfully violated” the court order.
Lawyers for the hospital said if they were found in contempt, the inability to comply was because of a limited number of beds and court orders they characterized as “conflicting.” Beck said the seven-day timeline requiring aid and assist committals be prioritized is a federal court order and therefore must be prioritized per the Supremacy Clause of the U.S. Constitution, which ensures federal laws take precedence over state laws.
At the time of the hearing, the hospital was at 91.57% capacity. The next day, a new cohort of admissions raised it to 94.9% — just under the hospital’s 95% current maximum operating capacity.
Derek Wehr, deputy superintendent of the hospital, said the hospital has applied this prioritization of aid and assist committals by creating separate admissions lists for each type of committal, prioritizing aid and assist above the others.
Because the flow of aid and assist committals are significant and ever-rising, it is unclear when people awaiting admission for other reasons may receive treatment. According to Wehr’s testimony, the first person on the guilty-except-for-insanity list has been waiting in jail since Jan. 15.
The consequences of this limbo are serious, said Stacey Reding, public defender with Multnomah Defenders. Reding’s client attended the July 14 hearing in an anti-suicide smock and shackles after being placed on suicide watch.
“He’s obviously not doing well,” Reding said during the hearing. “My fear is that without action from your honor ... (he) will continue to suffer in the custody of the Multnomah County Detention Center, and he needs to be at the Oregon State Hospital.”
Advocates point to jail as one of the worst places someone with mental illness can be. According to a 2021 report by Disability Rights Oregon titled “Grave Consequences: How the Criminalization of Disability Leads to Deaths in Jail,” more than half of the 10 people who died in Oregon jails between January 1, 2020, and October 31, 2020, had mental illness or substance use disorder. Six took their own lives.
The problem of people stuck in jail for extended periods while awaiting admission for treatment at the state hospital is serious, and it isn’t the only fact agreed upon by both state hospital leadership and their critics. The conflicting parties also described similar causes and potential solutions.
K.C. Lewis, managing attorney for Disability Rights Oregon’s Mental Health Rights Project, said there is an immense need for community-based mental health treatment, services and support.
“So I think that one of the things we’ve really been pushing the state hospital on is to take a harder line with the counties and say, ‘you can’t just use the state hospital to warehouse people that you don’t want to deal with. You have to find the resources to help these people,’” Lewis said.
Lewis said the lack of mental health services not only creates new committals even though less intensive support could be successful but also results in people staying in the hospital longer than they would need otherwise. Lewis isn’t alone in this belief. According to Wehr’s testimony in court, there are currently 25-30 people who could be discharged immediately if the “specialized environment was available within the community,” thereby opening up currently occupied beds.
Lewis said that lack of other services is another crucial part of the issue. Some people are harmed by the state hospital just as they are harmed by incarceration, according to Lewis. People “should be receiving treatment in the least restrictive environment,” he said.
Decriminalizing mental illness and addressing some root causes and factors that exacerbate it, like affordable-housing shortages, should enable the state hospital to address the sharp increase of aid and assist cases and return to its primary functions, Lewis said.
“At the end of the day, civil commits and (guilty-except-for-insanity commits) are really the people the state hospital is designed to be dealing with,” Lewis said.
During his testimony, Wehr said there was an average of 30.5 aid and assist committals per month in 2012. In 2021, there have been 70.3 per month.
“This really comes down to needing more community capacity to connect people with mental health challenges with the right services, at the right time, in the right place, to meet their needs,” Gipson-King said. “This is why, at the request of OHA/OSH and other behavioral health stakeholders, the Legislature has made such a robust investment in the overall system.”
Lewis said it costs $240,000 per year to treat somebody at the state hospital.
“(Treatment at the Oregon State Hospital) is less effective and deprives people of their liberty,” Lewis said.
$474.4 million and an unprecedented first step
The combination of the scale of the problem and nearly all stakeholders’ views lining up on both causes and solutions produced a rare opportunity for change. When combined with $2.6 billion in COVID-19 related federal aid through the American Rescue Plan Act and an Oregon revenue forecast suggesting the state had billions more dollars to spend for the coming two-year period than previously expected, a funding package began to materialize, OPB reported in June.
Rep. Rob Nosse (D-Portland), told Street Roots the “unprecedented” package was a result of people from different sectors, including healthcare, education and criminal justice, telling him the state does “a poor job of helping Oregonians address mental health challenges that they experience.”
Exhaustive in breadth and immense in scale, the package will fund everything from community behavioral health clinics to incentive programs intended to increase the capacity and diversity of Oregon’s behavioral health workforce.
The package also puts $72 million more into the Oregon State Hospital, with $31 million to fund two 24-bed patient units, as well as 110 staffing positions at the Junction City campus to address serious staffing shortages, according to a story published by The Lund Report in June. In court, Wehr said the projects, slated to be done by October, will reduce strain from the aid and assist increase and allow for people found guilty-except-for-insanity and civil committals to be admitted.
However, with both key funding sources of the package being temporary, Nosse told Street Roots there’s more work to be done ensuring future funding.
“These investments that we made can’t just be one time,” Nosse said. “They have to be sustained”
Taking a similar cautiously optimistic view, Lewis said that while the implementation will be key and that it’s hard to make up for decades of disinvestment, the package is “a fantastic first step in this larger project of building a functional behavioral health system.”
Back in the courtroom, the mood was somber as the hearing drew to a close without any hints of a resolution. The two men, still stuck in jail with no immediate solution, sat silently as the slew of professionals involved in the adjudication of their cases discussed the difficult matter of scheduling the next hearing around their respective overworked schedules and newly planned vacations.
Editor's note: This article has been updated to clarify a quote from Lewis to read “(Treatment at the Oregon State Hospital) is less effective and deprives people of their liberty."
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